tilting_at_windmillsIn a paper published last week in the Modern Law Review, Alastair Mullis and Andrew Scott considered the likely impact of the Defamation Act. Revised versions of the introduction and conclusion to that paper are drawn together here.

In April 2013, the Defamation Act received the Royal Assent as the culmination of a four-year political campaign and a multi-stage pre-legislative process. The legislation, which has this month come into force, is intended to ameliorate the “chilling effect” of libel law; to address the dysfunctionality that ‘imposes unnecessary and disproportionate restrictions on free speech’, and that ‘does not reflect the interests of a modern democratic society’. Specifically, it is intended to allow scientists, online commentators, non-governmental organisations, and others to introduce facts, criticism, comment and condemnation into public discussions without undue fear that their contributions will result in legal repercussions.

Some campaigners have extolled the reforms, suggesting that they ‘will change the landscape of free speech in Britain’. Others have been more circumspect, while the Minister charged with implementing the law – Lord McNally – has emphasised that it should be understood as only part of a wider array of measures oriented towards improving the functioning of the public sphere. He has indicated that his ‘intention… has always been to end up with legislation that works’. The overarching aim of this paper is to consider the success of that project.

After offering a brief overview of the contents of the Act, the paper considers the main changes wrought by the new law. This involves detailed discussion of the reform of the main common law defences, the impact of the new legislation on two types of speech that were of particular concern to campaigners (scientific discourse and online speech), and the likely ramifications of the Act for the libel process. The discussion identifies elements of the legislation that will likely pose problems of interpretation for courts in applying the law. It also highlights conceptual flaws in some aspects of the Act. It suggests that the new law will alter, but not very much ameliorate, the costly and burdensome process through which libel actions proceed, and will fail to provide the clarity that would enable publishers better to assess the legality of their actions when choosing to publish.

The paper is also critical of the Act on account of what it has not even attempted to achieve. On one level, this involves the complaint that more attention has not been paid to the matter of remedies, and in particular to the opportunity opened by the advent of new technology fully to embrace the discursive remedies of apology, correction, and right of reply.

At a deeper level, the question is posed whether the lawyers who have been to the fore in the development of the Act have fully understood the problem; whether they have failed adequately to think outside the legal box. Speaking during Parliamentary debate, the eminent scientist Lord May expressed the concern that

‘what is being described… [is] not easily going to be translated into anything that is not almost as expensive as what is currently being used as a weapon… [when most disputes] could have been settled by a judge in half an hour’.

The core problem with libel law has been the juridification and over-complication of public sphere disputes, and the attendant cost of embroilment in legal proceedings. This problem has been barely touched, to the benefit of no-one bar tyrants and lawyers.

On any reading, the emergence of the Defamation Act 2013 is the culmination of a phenomenally successful political campaign. The changes in the law of defamation that it has introduced will be significant, although it is as yet not clear precisely how profound they will be in terms of extent. Much will depend on judicial reception of the Act. On that basis it might be expected that there will be uncertainty and burden for litigants in the short to medium term. What is clear is that an opportunity radically to rethink the nature of interplay between the public sphere and the legal regime, the proper function of law in the resolution of public sphere disputes, has gone begging. Too much effort has focused on revising elements of the substantive law; not enough on how to design a regime for the resolution of arguments that might best triangulate the individual and social interests in reputation and free speech.

It may be that the perturbations in the law that are likely to be caused as judges come to terms with the new landscape may provide further opportunities for reflection and refinement. If workable systems of alternative dispute resolution can be devised, whether in the context of press regulation or beyond, this could do much to undercut the continuing problems of libel law.

In the meantime, it will remain the case that the sheer cost of bringing and defending libel claims will deny some litigants access to justice to vindicate their reputations and some publishers the right fully to express themselves as they might otherwise choose. The cost will continue to be counted not just in individual hurt and frustration, but also social detriment.

Alastair Mullis is Professor and Head of the School of Law at the University of Leeds. Andrew Scott is an associate professor at the London School of Economics.

The full paper was published as ‘Tilting at Windmills: the Defamation Act 2013’ (2014) Modern Law Review, 77(1), 87-109. A copy can be obtained from Andrew Scott (a.d.scott@lse.ac.uk).